Citation Nr: 9825633
Decision Date: 08/26/98 Archive Date: 07/27/01
DOCKET NO. 98-00 054A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for a furuncle of the
right auditory canal.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
WITNESSES AT HEARING ON APPEAL
Appellant and J. A.
ATTORNEY FOR THE BOARD
Eileen Colbert, Associate Counsel
INTRODUCTION
The appellant served on active duty from November 1943 to
November 1945.
This matter comes before the Board of Veterans' Appeals (the
Board) from an August 1997 rating determination by the
Department of Veterans Affairs (VA) Regional Office (RO) in
which the RO denied the appellant's claim for service
connection for bilateral hearing loss and service connection
for furuncle of the right auditory canal.
The Board notes that in January 1998, the RO issued a rating
decision which denied the appellant's claims of entitlement
to service connection for a gall bladder condition and for
prostate cancer. Those issues have not been developed for
appellate purposes and they will thus not be considered by
the Board at this time.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he was infected with a tropical
fungus in both ears in service. The appellant asserts that
fungus recurs and has made his current hearing loss extreme.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the appellant's
claims folder. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that
the appellant has not met the initial burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claims to entitlement to
service connection for bilateral hearing loss and furuncle of
the right auditory canal are well grounded. The benefits
sought on appeal are accordingly denied.
FINDINGS OF FACT
1. There is no current medical evidence of a furuncle of the
right auditory canal.
2. There is no competent medical evidence of a nexus between
bilateral hearing loss and furuncle of the right auditory
canal and the appellant's service.
CONCLUSIONS OF LAW
1. The appellant has not submitted evidence of a well-
grounded claim for entitlement to service connection for
bilateral hearing loss. 38 U.S.C.A. § 5107(a) (West 1991).
2. The appellant has not submitted evidence of a well-
grounded claim for entitlement to service connection for a
furuncle of the right auditory canal. 38 U.S.C.A. § 5107(a)
(West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Applicable Law and Regulations
Service connection
The prerequisite for entitlement to service connection is the
presentation of evidence that reflects that a disease or
disability was either incurred in or aggravated by military
service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303
(1997). The mere fact that a condition or injury occurred in
the service alone is not sufficient; there must be disability
resulting from that condition or injury.
For certain chronic conditions, including sensorineural
hearing loss, service connection may be granted if such
disorder is manifested to a compensable degree within one
year after separation from service. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309
(1997).
Service connection may also be granted for a disease first
diagnosed after service when all of the evidence, including
that pertinent to service, established that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1997).
Well grounded claims
The threshold question as to all claims presented is whether
the claim is well-grounded under 38 U.S.C.A. § 5107(a). A
well-grounded claim is a plausible claim which is meritorious
on its own or capable of substantiation. Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). There must be more
than an allegation; the claim must be accompanied by
supporting evidence that justifies a belief by a fair and
impartial individual that the claim is plausible. Tirpak v.
Derwinski, 2 Vet. App. 609, 611 (1992).
The United States Court of Veterans Appeals (the Court) has
held that in order for a claim of service connection to be
well grounded, the appellant must present competent evidence
of (1) a current disability (a medical diagnosis); (2)
incurrence or aggravation of the claimed disease or injury in
service (lay or medical evidence); and (3) a nexus between
the in-service injury or disease and a current disability
(medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995).
The Court has held that "[I]n the absence of competent
medical evidence of a current disability and a causal link to
service or evidence of chronicity or continuity of
symptomatology, a claim is not well grounded." Chelte v.
Brown, 10 Vet. App. 268, 271 (1997) [emphasis added by the
Board].
Factual Background
The service medical records reflect that upon an enlistment
examination conducted in November 1943, an evaluation of the
appellant's ears was normal with hearing acuity of 15/15 in
both ears.
In December 1944, the appellant complained of pain in his ear
and on the side of his head. An examination revealed
swelling within the external meatus, auditory canal. There
was marked tenderness and circumotal redness. Four days
later, after treatment, the swelling had subsided, there was
no earache, and the appellant was returned to duty. There is
no report in the service medical records of further
complaints or follow-up treatment.
On separation examination dated May 1946, the appellant's
hearing acuity in both ears was 15/15, on whispered and
spoken voice hearing tests. No disease or defects of the
ears were noted.
The appellant testified at a personal hearing conducted in
January 1998 that while in service he was almost deaf. He
stated that he spent a week in a unit hospital until a
tropical fungus disease in his ears cleared up. He
maintained that the disease is recurring and that he used a
home remedy to treat it. The appellant further testified
that his hearing loss had gotten progressively worse over the
years. In response to a question from the Hearing Officer,
the appellant stated that he did not have any medical
evidence which indicated a relationship between his current
hearing loss and his World War II service.
Analysis
1. Service connection for bilateral hearing loss
The appellant contends that his hearing loss warrants service
connection due to a tropical fungus that he incurred while in
service. However, the service medical records are silent as
to any complaints, symptoms, treatment or diagnoses of
hearing loss. The appellant's separation examination shows a
15/15 hearing acuity in both ears. Thus, there is no
evidence of a hearing loss disability in service, and prong
(2) of the Caluza test has not been satisfied.
Further, upon review of the outpatient treatment records from
1997, the Board finds that these records are specifically
absent any evidence of existing hearing loss that
etiologically links it to active military service, including
any alleged fungus. The appellant indicated at the hearing
that he did not have any such nexus evidence. Prong (3) of
the Caluza test has also not been satisfied.
In short, the critical inquiry is whether the record contains
any competent medical evidence which establishes an
etiological nexus between service and the appellant's
currently manifested hearing loss. Following a review of the
record, the Board concludes that no such etiological link is
shown by the current medical evidence. In this regard, the
Board notes that although the appellant has etiologically
linked his currently manifested hearing loss with service,
the Court has held that lay assertions of medical causation
cannot constitute evidence to render a claim well-grounded.
See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) and
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
Therefore, the claim is not well grounded in that there is no
evidence which indicates that a hearing loss existed during
service or within the one year presumptive period thereafter,
and no medical evidence of record which establishes a nexus
between any in-service disease and the appellant's currently
manifested hearing loss.
The Board accordingly finds that a well-grounded claim has
not been presented. Service connection for bilateral hearing
loss is denied.
2. Service connection for a furuncle of the right auditory
canal
The appellant contends that service connection should be
granted for furuncle of the right auditory canal. In order
for the appellant to be granted service connection, there
must be evidence of both a service connected disease or
injury and a present disability which is attributable to such
disease or injury. See Rabideau v. Derwinski, 2 Vet. App.
141, 143 (1992). In this case, while there is evidence that
the appellant suffered from furuncle of the right auditory
canal during service, there is no current medical diagnosis
of furuncle of the right auditory canal.
Although the service medical records do reflect that the
appellant incurred a furuncle of the right auditory canal,
this condition resolved after a few days, with no further
complaints. His separation examination was negative for this
disease. Moreover, there is no current diagnosis of furuncle
of the right auditory canal.
The mere fact that a condition or injury occurred in the
service alone is not sufficient; there must be disability
resulting from that condition or injury. The court has held
that a causal link to service or evidence of chronicity or
continuity of symptomatology in addition to competent medical
evidence of a current disability is needed to well grounded a
claim. See Chelte, supra.
The Board accordingly finds that on the absence of a current
disability, a well-grounded claim has not been presented.
Service connection for a furuncle of the right auditory canal
is denied.
Additional matter
Although when a claim is not well grounded, the VA does not
have a statutory duty to assist a veteran in developing facts
pertinent to his claim, the VA may be obligated to advise a
veteran of the evidence needed to complete the application.
This obligation depends upon the particular facts of the case
and the extent to which the Secretary of the VA has advised
the veteran of the evidence necessary to be submitted with a
VA benefits claim. Robinette v. Brown, 8 Vet. App. 69
(1995). By this decision, the Board is providing the
appellant with notice of the evidentiary insufficiency of his
claim, and what evidence would be necessary to make the claim
well grounded, at the very least competent medical evidence
which provides a nexus between any current hearing loss and
the appellant's service, and evidence of a current medical
diagnosis of a furuncle of the right auditory canal.
ORDER
A well-grounded claim not having been submitted, entitlement
to service connection for bilateral hearing loss is denied.
A well-grounded claim not having been submitted, entitlement
to service connection for furuncle of the right auditory
canal is denied.
Barry F. Bohan
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.